Diversity and the profession: a reply to Lord Sumption

Last night, Lord Sumption, a Justice of the Supreme Court, was trending on Twitter. This, I think, was a first. The furore was linked to an interview given by Lord Sumption to the Evening Standard.

The full interview can be found here. What drew particular ire from the Twitterati were the comments by Lord Sumption on gender and the judiciary, and wider comments on diversity and the legal profession. Now, as it happens, I have spent a chunk of my summer reviewing the research on diversity at the Bar, as part of a wider multi-year project on diversity and inclusion in the profession. Those (few) wanting bed time reading on diversity reporting by large law firms need look no further.

It’s perfectly possible that Lord Sumption’s comments on diversity were taken out of context and that, as a whole, his interview was poorly portrayed in the Standard’s write up. If that is the case, I am sure there will be a statement via the Supreme Court, and a later correction/apology by the ES. But, if this is not the case, there are various parts of Lord Sumption’s commentary that I take issue with. Not because of my personal beliefs or wants, but because decades of social science research suggests otherwise.

There are three things from the ES article in particular that I would like to challenge. The relevant quotes are below, but let us call these: (i) the patience problem; (ii) the lifestyle choice problem; and (iii) the old boys network problem.

Lord Sumption: “It takes time. You’ve got to be patient. The change in the status and achievements of women in our society, not just in the law but generally, is an enormous cultural change that has happened over the last 50 years or so. It has to happen naturally. It will happen naturally. But in the history of a society like ours, 50 years is a very short time.”

Lord Sumption: “The Bar and the solicitors’ profession are incredibly demanding in the hours of work and the working conditions are frankly appalling. There are more women than men who are not prepared to put up with that. As a lifestyle choice, it’s very hard to quarrel with it, but you have to face the consequence which is that the top of the legal profession has fewer women in it than the profession overall does.”

Article: “Some critics have claimed that traditional “old boys’ networks” are part of the reason for restricting female progress in the Bar and on the bench. Lord Sumption said, however, that while he obtained his pupillage in the 1970s via a friend of his father, such claims were now “rubbish in both cases”.”

Let’s start, however, with a quick recap on gender and the judiciary. This is, as the Guardian might say, a ‘long read’ blog, but it’s important to have the data and evidence to hand.

The latest diversity statistics for the judiciary were published in July 2015. Overall, around a 1/4 of the judiciary are female:

“The number of judges in the courts on 1 April 2015 was 3238, of which 817 (25.2%) were female. This is an increase from 2014 when 24.5% of court judges were female… [T]he percentage of judges who are female tends to be higher in the fee paid positions than in the salaried positions.”

The numbers, however, are much poorer when one takes a stratified view of the judiciary. There is only one female Justice in the Supreme Court (Lady Hale), only 8 of 38 Court of Appeal judges are female, and only 21 out of 108 High Court judges are female. The picture, however, is somewhat different when it comes to those seeking entry. In its latest statistical bulletin, covering the 21 previous exercises to appoint candidates to the judiciary, the Judicial Appointments Commission notes that:

“When considering all 21 exercises, 42% (979) of all applicants, 42% (785) of the shortlisted candidates and 43% (132) of recommended candidates were women. Overall, the proportions of applicants who were women were similar to the proportions of women in the posts’ respective eligible pools.”

Around 2/3 of the judiciary come from the Bar. And this is where I have spent my summer reading up. On its website, the BSB has a webpage titled ‘Statistics’ which contains data for “the life cycle of the Bar – from entry to Queen’s Counsel”. For practising barristers, there is data on age, ethnicity and gender from 2010-2014. The same spread of data exists for Queen’s Counsel, and for pupil barristers. Male pupil barristers continue to outnumber female pupils (55% to 45%). Whereas, with the solicitors’ branch of the profession there is almost parity in gender (until partner level), this is not true at the Bar. Since 2010, the proportion of female practising barristers has remained almost static. In 2014, 35.4% of practising barristers were female, but only 13.3% of Queen’s Counsel are not male. Put short, the legal profession does not reflect the society it serves.

1. The Patience Problem

In the ES article, Lord Sumption suggested that “patience” was required as regards gender and the judiciary, and that change has to, and will, “happen naturally.” This, with the greatest of respect, is plainly wrong, because it presupposes that gender parity is an inevitable outcome in some distant future. The research, however, suggests otherwise (at least in relation to the populations providing candidates for the judiciary). In 2014, the Equality, Diversity and Social Mobility Committee of the Bar Council commissioned a ‘Momentum Measures’ report.The aim was to understand, “when the profession might reflect the population profile of England & Wales.” The report comes to two very strong conclusions in respect of gender:

“current trends suggest that with the present model of practice at the Bar a 50:50 gender balance among all practising barristers is unlikely ever to be achieved. This is for two reasons: women gave a lower propensity to move from Call to practice and a higher attrition rate once in practice.”

“…in respect of barristers of more than 15 years Call, and of Queen’s Counsel, on current trends the practising Bar will not achieve gender balance in the foreseeable future.”

If, as Lord Sumption said himself in the ES article, the judiciary is an option “at the end of a successful career at the Bar”, we need diversity at the Bar. In respect of gender, at least, the Momentum Measures report suggests that “patience” may be a virtue better employed elsewhere.

2. + 3. The Lifestyle Choice Problem & The Old Boys Network Problem

Lord Sumption seems to suggest in the ES article that women, as a “lifestyle choice”, reject the long hours/demanding culture of the Bar and the solicitors’ branch. The evidence on this, however, suggests a more complex picture.

In 2010, the LSB commissioned an empirical report into diversity into the legal profession. One (note: one) finding from the research related to women and patterns of working in the profession:

“Women lawyers spoke of the difficulties flowing from working patterns based on male models of working, which therefore entailed very long hours. They also complained that flexible working patterns are either not permitted, or damage future promotion prospects.”

However, a variety of other formal and informal barriers placed in the way of women (and minority lawyers) were also raised by the researchers. In particular, the report goes on to comment that:

“Our data suggested that the major obstacle to diversity is the profession’s informal culture and in particular the key significance of personal relationships. This is exemplified by the informal mentoring which was reported as characterising most respondents’ workplaces, and the fact that in practice this meant that powerful senior figures (generally white men) tended to foster the careers of young white men.”

The power and importance of mentors, and role models, for women and minority lawyers has been a repeated theme in the literature on diversity in the profession. Lord Sumption suggested that the notion of a current “old boy’s network” was “rubbish”. However, the LSB researcher’s found that, “the legacy of the profession‟s white, male elitist origins and the significance of cultural stereotypes” were important factors. In her work for the Bar Council using data on pupillages from 2000-2004, Anna Zimdars found that entry to the Bar is reliant, “on the profile of graduates emerging from the prior education system where ascribed characteristics such as ethnicity influence opportunities concerning attainment and university type.” She concluded that, in relation to pupils, “High attainment and an Oxbridge education are related to high earnings, opting for self-employment and for working in London.” In later work, covering pupillages from 2004-2008, Zimdars and Jennifer Sauboorah found that, “social origin factors play a role in influencing earnings, employment status and location.” Other research suggests how important work experience is to gaining employment in the profession, and that gaining such experience can be particularly challenging for certain groups of would-be lawyers.

In 2005, Rosemary Hunter published a study which looked at female barristers working at the independent Bar in the Australian state of Victoria, which traces its history back to, and is aligned along similar lines as, the English Bar. It is a robust piece of research, drawing on data from 125 interviews with barristers, judges, solicitors, clerks and others. Her conclusions are clear:

“Women barristers, like women lawyers everywhere and in all branches of the profession, tend to find themselves in the less prestigious and less remunerative courts, practices areas and cases.”

Hunter also found that briefing practices (the ways in which solicitors give work via clerks to barristers), “present a variety of barriers to women’s advancement at the Bar”. This was, in part due to homosociality, “the way in which men network, socialised and feel most comfortable with male peers.” As such, while the idea of an “old boys network” may give too much weight to a notion of a well formed, well oiled, anti-women cartel, there are various cultural and social forces which can operate to exclude women and minority lawyers from entry and progression.

In 2014, the Bar Council undertook focus groups and interviews with 85 women barristers. This research found that women barristers who had been in practice for some time spoke of, “a hostile environment, inappropriate behaviours and discrimination in the allocation of work (particularly in crime by both clerks and solicitors) when they started their working lives”, but that these experiences had changed, for the better, over time. Research shows that the power of clerks in allocating, or not allocating, work to female lawyers has been a recurrent theme ever since women were first allowed to join in the Bar in 1919. Participants in the Bar Council led project also felt that practice as a barrister was “incompatible” with having a family. The following over arching themes were said to come from the focus groups and interviews:

“…women’s lack of confidence in challenging clerks and colleagues in practice development, and in applying for more senior, silk and judicial roles; the importance of female role models to support and encourage, and to demonstrate a successful career at the Bar is within reach; and the problem of networking, which with ever greater numbers of barristers chasing less work (in the public sector) is becoming more and more important.”

As such, the evidence suggests that women do not advance in the profession for multiple, complex, interlocking reasons and because of many and varied formal and informal barriers. “Lifestyle choice”, if it is relevant at all (and if it can be called a ‘choice’), is but one tiny part of what is going on.

Dr Steven Vaughan, Law School, University of Birmingham
Twitter: @lawvaughan